{"id":134691,"date":"1978-02-10T00:00:00","date_gmt":"1978-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-etc-etc-vs-alaserry-mohammed-etc-etc-on-10-february-1978"},"modified":"2015-10-21T06:48:14","modified_gmt":"2015-10-21T01:18:14","slug":"state-of-kerala-etc-etc-vs-alaserry-mohammed-etc-etc-on-10-february-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-kerala-etc-etc-vs-alaserry-mohammed-etc-etc-on-10-february-1978","title":{"rendered":"State Of Kerala Etc. Etc vs Alaserry Mohammed Etc. Etc on 10 February, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Kerala Etc. Etc vs Alaserry Mohammed Etc. Etc on 10 February, 1978<\/div>\n
Equivalent citations: 1978 AIR 933, \t\t 1978 SCR (2) 514<\/div>\n
Author: N Untwalia<\/div>\n
Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Untwalia, N.L., Kailasam, P.S., Tulzapurkar, V.D.<\/div>\n
           PETITIONER:\nSTATE OF KERALA ETC.  ETC.\n\n\tVs.\n\nRESPONDENT:\nALASERRY MOHAMMED ETC.\tETC.\n\nDATE OF JUDGMENT10\/02\/1978\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nBEG, M. HAMEEDULLAH (CJ)\nCHANDRACHUD, Y.V.\nKAILASAM, P.S.\nTULZAPURKAR, V.D.\n\nCITATION:\n 1978 AIR  933\t\t  1978 SCR  (2) 514\n 1978 SCC  (2) 386\n CITATOR INFO :\n F\t    1979 SC1824\t (1)\n R\t    1980 SC 126\t (1,TO,5)\n R\t    1980 SC 593\t (13)\n RF\t    1981 SC1169\t (44)\n R\t    1983 SC 545\t (5,6)\n F\t    1985 SC 329\t (2)\n\n\nACT:\nPrevention  of\tFood  Adulteration  Act,  1954,\t s.  11\t and\nPrevention of Food Adulteration Rules, 1955, rule 22  object\nof the Act and the Rule.\nPrevention  of\tAdulteration Rules, 1955  framed  under\t the\nPrevention  of Adulteration Act, 1954, rule 22--Whether\t the\nrule  is directory or mandatory--Whether the  non-compliance\nwith  the  requirement of rule 22 vitiates a  trial  or\t the\nconviction recorded under s. 16(1)(a)(ii).\nPractice  and  Procedure--Interference with  the  orders  of\nacquittal  based on the decision of the Supreme Court  which\nhas held the field for over 3 years, Whether permissible  in\nthe interest of justice.\n\n\n\nHEADNOTE:\nRule  22 of the Prevention of Food Adulteration Rules,\t1955\nframed\tunder the Prevention of Food Adulteration Act,\t1954\nspecifies the quantity of sample of food to lye sent to\t the\nPublic\tAnalyst or Directorate for analysis as the case\t may\nbe.  Items 1 to 22 gives a list of various articles of\tfood\nand  the residuary item 23 includes all foods not  specified\nin  items  1  to 22.  In the last column  of  the  list,  as\nagainst\t the  quantity\tto  be\tsupplied,  the\theading\t  is\n\"Approximate quantity to be supplied\".\nWhile  considering  the said provisions, in Rajal  Day\tGuru\nNamal  Pamanani\t v. The State of Maharashtra<\/a>  [1975]  2\t SCR\n886=AIR\t 1975  SC 189 conviction of the\t appellant  was\t set\naside by this Court on the ground :\n\t      \"The   Public   Analyst  did  not\t  have\t the\n\t      quantities   mentioned   in  the\t Rules\t for\n\t      analysis.\t The appellant rightly contends that\n\t      non-compliance   with  the  quantity   to\t  be\n\t      supplied\tcaused\tnot only infraction  of\t the\n\t      provisions but also injustice.  The quantities\n\t      mentioned\t are required for correct  analysis.\n\t      Shortage\tin  quantity  for  analysis  is\t not\n\t      permitted by the Statute.\"\nSince  under  Article  141 of the  Constitution,  the  above\ndecision  of  the Supreme Court is binding on all  the\tHigh\nCourts,\t following  the above view in some  cases  the\tHigh\nCourt refused special leave against the order of  acquittal;\nin  others,  some other grounds Of attack on  the  order  of\nconviction  were  available but were neither gone  into\t nor\ndecided\t by  the High Court; in some others the\t High  Court\nrecorded   orders   of\tacquittal;  in\t some\tcases,\t the\nadulteration  was  of  a  minor\t and  technical\t  character,\nalthough  in some it was of, rather, serious nature too\t and\nin  some  cases, decisions were given on  the  footing\tthat\nchillies  powder  is condiment and not\tspice.\t Hence,\t the\nappeals by special leave.\nThe  appellants contended that the view in  Pamanani's\tcase\nwas not correct and needed further examination.\nDisposing  of  the  appeals  by\t laying\t down.\tthe  correct\nproposition of the law, the Court\nHELD  :\t (1) The report of the Analyst under s.\t 13  of\t the\nPrevention  of Food Adulteration Act, 1954 has got  a  great\nsanctity for protecting the general public and their  health\nagainst\t use  and consumption of adulterated food.   On\t the\nother hand, it has great significance and importance for the\nprotection  of a citizen, as he can be convicted  under\t the\nAct only on its basis, under s. 16(1)\n821\n(a)(ii)\t of the Act, because unless and until the report  of\nthe Public Analyst is demolished shaken or becomes doubtful,\nit  is\tfinal and conclusive evidence of  the  facts  stated\ntherein, under s. 13 (5) of the Act. [825 D-E]\n(2)  The use of the word 'shall' in sub-s. (3) of s. 11\t and\nin  Rule 22 would on its face, indicate that  an  imperative\nduty has been cast upon the Food Inspector to send a  sample\nin  accordance with the prescribed rules.  The mere  use  of\nthe  word 'shall' does not invariably lead to  this  result.\nThe  whole purpose and the context of the provisions has  to\nbe kept in view for deciding the issue. [827 D-E]\n(3) The purpose of prescribing more than double the quantity\nrequired for analysis is that a Food Inspector while  taking\na  sample of food for analysis in accordance with s.  11  of\nthe Prevention of Food Adulteration Act. is not aware at the\nthreshold  whether the person from whom the sample has\tbeen\ntaken would decline to accept one of the three parts.  It is\nto  guard  against  such an eventuality\t that  the  quantity\nprescribed  is\tmore  than  double  because  if\t the  person\ndeclines to accept one-part of the sample then, as mentioned\nin sub-s. (2), the Food Inspector has to send an  intimation\nto  the\t Public Analyst of such refusal\t and  thereupon\t the\nlatter has to divide 1\/3rd part sent to him into two  parts.\nThe half of the one third is retained for further tests,  if\nnecessary,  or for production in case legal proceedings\t are\ntaken. [827 G-H, 828 A-B]\nState  of  Uttar Pradesh v. Kartar Singh<\/a> [1964]\t 6  SCR\t 679\nreferred to.\n(4)  The object of the Act is to obtain the conviction of  a\nperson dealing in adulterated food.  The whole object of  s.\n11 and Rule 22 is to find out by a correct analysis, subject\nto  further verifications and tests by the Director  of\t the\nCentral Laboratory or otherwise, as to whether the sample of\nfood  is  adulterated or not.  If the quantity sent  to\t the\nPublic Analyst, even though it is less than that prescribed,\nis  sufficient\tand  enables the Public Analyst\t to  make  a\ncorrect analysis, then merely because the quantity sent\t was\nnot  in strict compliance with the rule will not  result  in\nthe  nullification  of the report and  obliterate  its\tevi-\ndentiary value.\t If the quantity sent is less, it is for the\npublic\tAnalyst\t to  see whether it is\tsufficient  for\t his\nanalysis  or not.  If he finds it insufficient, there is  an\nend of the matter.  If, however, he finds it sufficient, but\ndue  to one reason or the other, either because\t of  further\ntests  or  otherwise,  it is shown that the  report  of\t the\nPublic Analyst based upon the short quantity sent to him  is\nnot trustworthy or beyond doubt, the case may fail. in other\nwords,\tif  the object is frustrated by the sending  of\t the\nshort quantity, by the Food Inspector to the Public Analyst,\nthe  case will end in acquittal.  But if the object  is\t not\nfrustrated and is squarely and justifiably achieved  without\nany shadow of doubt, then it will endanger public health  by\nacquitting  offenders  on technical grounds  which  have  no\nsubstance. [827 E, 828 B-F]\nChandra\t Nath  Bagchi v. Nabadwip Chandra  Dutt\t and  others\nA.I.R. 1931 Calcutta 476 quoted with approval.\n(5)  The  object  of rule 22 is to  secure  evidence  as  to\nwhether\t the  article of food sold is  adulterated  or\tnot.\nThat being so, even directory Rules are meant to be observed\nand   substantially   complied\twith.\tA   Food   Inspector\ncommitting  a  breach  of the  Rule  may  be  departmentally\nanswerable to the higher authorities.  He should, therefore,\nalways\tbe  cautious in complying with the Rules as  far  as\nPossible  and  should not send a lesser quantity  of  sample\nthan  prescribed  to the Public Analyst unless\tthere  be  a\nsufficient reason for doing so. [823 A-B D-E]\nState  of Bombay v. Ramanlal Jamnadas Gandhi  I.L.R.<\/a>  [1960]\nBombay, 404, Nagar Swatha Adhikari, Nagar Mahapalika Aqra v.\nAnt  Ram  A.I.R.<\/a>  1906 Allahabad, 32  Public  Prosecutor  v.\nBasheer\t Sahib A.I.R. 1966 Madras 325 Public  Prosecutor  v.\nEdiga  Venkata Swami A.I.R. 1967 Andhra Pradesh\t 131  Andhra\nPradesh\t v. Pusala Rama Ram A.I.R. 1967 Andhra\tPradesh\t 49,\nFoodInspector, Quilon v. Kovakutty (1972) Kerala Law  Times.\n464  and  Food Inspector, Calicut v. T.\t Karunakaran  Others\n(1973) Kerala Law Times, 595 approved.\n(6)  Rule 22 is directory and not mandatory, as it seems  to\nhave been assumed by this Court in Pamanani's case.  The use\nof the word 'approximate' does in-\n822\ndicate\tthe  directory\tnature\tof the\tRule  but  does\t not\nnecessarily  militate  against\tthe view that  the  Rule  is\nmandatory. [826 A, 827 A-B]\n(7) The expression 'approximate quantity' is meant to convey\nthat  the  quantity  to be supplied must  be  in  the  close\nvicinity of the quantity specified.  So long it is so, there\nis  no infraction of the Rule at all.  But the\tquestion  of\nnon-compliance\twith  the Rule comes in\t when  the  quantity\nsupplied is not in close vicinity of the quantity  specified\nand  is\t appreciably  below it.\t Even so,  if  the  quantity\nsupplied is sufficient and enables the Public Analyst to  do\nhis duty of making a correct analysis, it should be inferred\nthat  the Rule has been substantially complied with, as\t the\npurpose of the Rule has been achieved.\n[828 F-H]\n(8)  In\t Pamanani's  case,  the Court  seems  to  have\tbeen\noverwhelmed  by\t a sense of injustice when the\tHigh  Court,\nwhich\thad  acquitted\tthe  manufacturer,   convicted\t the\nappellant, a grocer, although facts of the case did indicate\nthat  the real culprit was the\tmanufacturer.\tTechnically,\nthe grocer could not succeed in getting protection under  s.\n19(2)(a)  of  the Act.\tIt is in this background,  that\t the\nCourt's\t sense of justice weighed heavily in favour  of\t the\ngrocer and promoted it to say \"that non-compliance with\t the\nquantity  to be supplied caused not only infraction  of\t the\nprovisions but also injustice. [829 A-B]\n(9) The new Rule 22B added in 1977 to the Prevention of Food\nAdulteration  Rules, 1955 is for the purpose  of  clarifying\nthe-  law  and not by way of amending it.  The law  was\t so,\neven  without any amendment.  Rule 22B places it beyond\t any\ndebate of doubt. [829 E]\nW.  T.\tStone, Warden, Petitioner-74-1055 v.  Lloyd  Charles\nPowell and Charles  L.\tWolff.\tJr. Warden  Petitioner,<\/a>\t 72-\n1227 v. David L. Rice decided on July 6,     1976     quoted\nwith approval.\n10. A representative sample has got a different connotation,\nmeaning and purpose in\t commercial  transaction.   In\t our\nstatute, the ingredient of the offence is manufacturing\t for\nsale, storing, selling or distributing any adulterated food.\nIf  the\t food  sold  to\t the  Inspector\t is  proved  to\t  be\nadulterated,  it is immaterial whether the sample  purchased\nby him is a representative sample or not of the entire stock\nin  possession of the person.  A person who stores or  sells\nsuch sample is liable to be punished under s. 16(1)(a)(i) of\nthe Act. [830 F-G]\nDwerryhouse  v. United Co-operative Dairies, Ltd.  [1962]  1\nAll England Law Reports 936 and Skeate v. Moore [1971] 3 All\nEngland Law Reports, 1306 distinguished.\nRajal  Das Guru Namal Pamanani v.  The State of\t Maharashtra<\/a>\n[1975] 2 SCR 886 =AIR 1975 SC 189 overruled.\n[ln  ,view of Pamanani's case holding the field for about  3\nyears,\tthe introduction of the new s. 22B and\tthe  States'\ninterest  being more in the correct enunciation of  the\t law\nthan  in  seeing that the respondents in these\tappeals\t are\nconvicted,  the\t Court,\t in  larger  interest  of   justice,\ndisposed of the appeals without disturbing or setting  aside\nthe orders under appeals or making any consequential orders]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal Nos.\t216-
\n218 of 1976.\n<\/p>\n
Appeals by Special Leave from the Judgments and Orders dated
\nthe  12-2-1975,\t 17-2-1975 and 8-7-1975\t in  Crl.   Revision
\nPetitions  Nos.\t 383, 294\/74 and Crl.  Misc.   Petition\t No.
\n570\/75 respectively and
\nCRIMINAL APPEAL Nos. 204\/76, 32\/78 AND 307\/77
\nAppeals by Special Leave from the Judgments and Order  dated
\nthe 15-7-1975, 12\/13-11-1975 and 18-11-1975 in Crl.   Appln.
\nNo. 678\/75, Crl.  Appeal No. 311\/74 and Crl.  A. No.  325\/74
\nrespectively and
\n823<\/span>
\nCRIMINAL  APPEAL Nos. 278\/76, 408-410\/77, 429,\t372\/77,\t 33-
\n36\/78.\n<\/p>\n
Appeals by Special Leave from the Judgments and Order  dated
\nthe 19-4-1976, 24-12-76, 7-12-76, 17-1-77, 30-11-76,  22-11-
\n76,  19-5-76,  8-2-77 in Crl.  Revision No.  53\/75,  294\/74,
\n258\/76, 1707\/ 76, 86\/76, 212\/76, 82\/75; 231\/76 and 1603\/76 &
\n239\/76 respectively.\n<\/p>\n
S. V. Gupte, Attorney General of India (In C.A. 216), K.  R.
\nNambiar for the Appellant in C.As. 216 and 217\/76.
\nN. Sudhakaran for Appellant in Crl.  A. 218\/76.
\nV. S. Desai, (in CA. 204), H. R. Khanna and M. N. Shroff for
\nthe Appellant in Crl.  A. 204\/76, 307\/77 and 32\/78.
\nS.  V. Gupte, Attorney General of India (In CA. 278), B.  P.
\nMaheshwari,  N. K. Jain, Suresh Sethi and Randhir  Jain\t for
\nthe  Appellant in Crl.\tA.278\/76, 408-410, 429, 372 of\t1977
\nand 33-36 of 1978.\n<\/p>\n
D.Mukherjee  and S. K. Sabharwal for Respondent in  Crl.  A.
\n34\/78.\n<\/p>\n
A.S. Nambiar for Respondent in Crl. A. 216\/76.
\nM.  C.\tBhandare,  B.  P. Singh and  A.\t K.  Srivastava\t for
\nRespondent No. 1 in Crl.A No., 278\/76.\n<\/p>\n
Vepa Sarathy and P. K. Pillai fort Respondent No. 1 in\tCrl.
\nA.35\/ 78.\n<\/p>\n
Veena Devi Khanna and V. N. Ganpule for Respondent No. 1  in
\nCrl.  A. No. 36\/78.\n<\/p>\n
D. P. Mukherjee for Intervener in Cr.  A. No. 278.
\nGanatra\t (V.  B.), 1. N. Shroff and H. S. Parihar,  for\t the
\nIntervener in Crl.  A. No. 204 and R. 1 in Crl.\t A. No. 307.
\nThe Judgment of the Court was delivered by
\nUNTWALIA  J,.-In these appeals by special leave\t the  common
\nand   important\t question  of  law  which  falls   for\t our
\ndetermination\tis  whether  the  non-compliance  with\t the
\nrequirement   of   Rule\t 22  of\t the  Prevention   of\tFood
\nAdulteration  Rules,  1955-hereinafter\tcalled\tthe   Rules,
\nframed under The Prevention of Food Adulteration Act,  1954-
\nhereinafter to be referred to as the Act, vitiates the trial
\nor the conviction recorded under section 16(1)(a)(i) of\t the
\nAct.   In  Rajal Das Guru Nanal Pamanant v.  The  States  of
\nMaharashtra<\/a>(1) the conviction of the appellant was set aside
\non the ground :-\n<\/p>\n
\t      “The   Public   Analyst  did  not\t  have\t the
\n\t      quantities   mentioned   in  the\t Rules\t for
\n\t      analysis,.   The\tappellant  rightly  contends
\n\t      that  non-compliance with the quantity  to  be
\n\t      supplied\tcaused\tnot only infraction  of\t the
\n\t      provisions but also injustice.  The quantities
\n\t      mentioned\t are required for correct  analysis.
\n\t      Shortage\tin  quantity  for  analysis  is\t not
\n\t      permitted by the Statute.”\n<\/p><\/blockquote>\n
This   larger  Bench  was  constituted\tfor  examining\t the
\ncorrectness of the above view.\n<\/p>\n
(1) [1975] 2S.C.R.886 =A.I.R. 1975 S.C. 189.\n<\/p>\n
824<\/span><\/p>\n
We  shall, at the outset, notice the scheme of the Act\twith
\nreference  to  the relevant provisions of the  Act  and\t the
\nRules.\tThe Act was very substantially amended by Act 34  of
\n1976.  We will however, for the purpose of these appeals  be
\nreferring to die pro.visions of the Act as-they stood before
\nthe said amendment.  When an article of food shall be deemed
\nto be adulterated has been mentioned and defined in  section
\n2 (i) of the Act.  It is not seriously in dispute in any  of
\nthese  appeals\tthat the articles of food sold to  the\tFood
\nInspectors  by\tthe  dealers were found\t to  be\t adulterated
\nwithin the meaning of one or the other sub-clause of  clause\n<\/p>\n
(i) of section 2 of the Act.  Of course, the type and extent
\nof adulteration did vary.  In some cases it was of a serious
\nnature in others it was of a technical nature and in some it
\nwas  as\t a result of misunderstanding as to  nature  of\t the
\narticle\t sold, as for example, whether it was  Vanaspati  or
\nGhee.\tAs  usual,  according  to  clause  (xii)  the\tword
\n“prescribed” in the Act means prescribed by rules made under
\nthe  Act.   Clause (xiv) defines the “sample”  to  mean\t .”a
\nsample of any article of food taken under the provisions  of
\nthis Act or of any rules made thereunder.”
\nA Central Committee for food standards has been\t constituted
\nby  the Central Government in accordance with section  3  to
\nadvise\ton matters arising out of the administration of\t the
\nAct  and  to carry out the other functions assigned  to\t it.
\nSection\t 7  provides that no person  shall  manufacture\t for
\nsale,  store,  sell  or\t distribute  any  adulterated  food.
\nPublic Analysts are appointed under section 8. Food  Inspec-
\ntors  appointed\t under\tsection 9 have\tbeen  conferred\t the
\npowers\tenumerated in section 10.  A Food Inspector has\t got
\npower  to  take\t a sample of any article of  food  from\t any
\nperson selling such article under section 10(1) (a) (i)\t and
\nto  send such sample for analysis to the Public Analyst\t for
\nthe  local area within which such sample has been  taken  as
\nprovided for in clause (b).  The procedure to be followed by
\nFood.  Inspectors is provided for in section 11.  Under sub-
\nsection\t (1),  Food Inspector taking a sample  of  food\t for
\nanalysis has to give notice. to the person from whom he\t has
\ntaken  the sample, separate the sample then and\t there\tinto
\nthree parts, mark and seal or fasten up each part in such  a
\nmanner\tas its nature permits, deliver one of the  parts  to
\nthe person from whom the sample has been taken, send another
\npart for analysis to the Public Analyst and retain the third
\npart for production in any legal proceedings or for analysis
\nby the Director of the Central Food Laboratory.\t Sub-section
\n(2) says :\n<\/p>\n
\t      “If  the person from whom the sample has\tbeen
\n\t      taken.  declines to accept one of\t the  parts,
\n\t      the  food inspector shall send  intimation  to
\n\t      the   public  analyst  of\t such  refusal\t and
\n\t      thereupon\t the  public  analyst  receiving   a
\n\t      sample  for analysis shall divide it into\t two
\n\t      parts and shall seal or fasten up one of those
\n\t      parts and shall cause it, either upon  receipt
\n\t      of the sample or when he delivers his  report,
\n\t      to  be  delivered to the\tfood  inspector\t who
\n\t      shall  retain it for production in case  legal
\n\t      proceedings are taken.”\n<\/p><\/blockquote>\n
Now sub-section (3) should also be to read as a whole.\n<\/p>\n
825<\/span><\/p>\n
\t      “When a sample of any article of food is taken
\n\t      under  sub-section (1) or sub-section  (2)  of
\n\t\t\t    section  10,  the food inspector shall  send
\na
\n\t      sample  of  it in accordance  with  the  rules
\n\t      prescribed for sampling to the public  analyst
\n\t      for the local area concerned.”\n<\/p><\/blockquote>\n
Any  purchaser\tof  any article of food other  than  a\tfood
\ninspector can also get the food purchased by him analysed in
\naccordance  with  section  12.\tSection 13  deals  with\t the
\nreport of the Public Analyst and makes it, in certain cases,
\nsubject\t to  the  over-riding effect of the  report  of\t the
\nDirector of the Central Food Laboratory.  Sub-section (5) of
\nsection 13 says that any document purporting to be a  report
\nsigned\tby a public analyst, unless it has  been  superseded
\nunder subsection (3) by a certificate of the Director of the
\nCentral\t Food  Laboratory, may be used as  evidence  of\t the
\nfacts  stated therein in any proceeding under the  Act.\t  It
\nshall be final and conclusive evidence of the facts,  stated
\ntherein.  Of course, if necessary, the Public Analyst can be
\ncalled as a witness, in accordance with the Code of Criminal
\nProcedure, to depose about certain facts in relation to\t his
\nreport\teither\tat the instance of the\tprosecution  or\t the
\naccused.   Even the Court may summon him as its\t witness  if
\nthe  justice of the case so requires.  And until and  unless
\nthe  report of the Public Analyst is demolished,  shaken  or
\nbecomes doubtful, it is final and conclusive evidence of the
\nfacts  stated  therein.\t  A person can\tbe  convicted  under
\nsection 16 (1 ) (a) (i) merely on the basis of the report of
\nthe Public Analyst.  His report, therefore, has got a  great
\nsanctity for protecting the general public and their  health
\nagainst\t use  and consumption of adulterated food.   On\t the
\nother hand, it has great significance and importance for the
\nprotection of a citizen as he can be convicted under the Act
\nonly on its basis.\n<\/p>\n
Amongst\t the  Rules, the relevant ones for our\tpurpose\t are
\nRules 14 to 22A contained in Chapter V-the heading of  which
\nis “Sealing, Fastening and Despatch of Samples.” The  manner
\nof  sending sample for analysis is provided in Rule  14\t and
\nthe  method  of\t labelling and\taddressing  the\t bottles  or
\ncontainers  is to be found in Rule 15.\tRule 16\t deals\twith
\nthe  manner  of\t packing and sealing  the  samples.   How  a
\ncontainer of a sample is to be sent to the Public Analyst is
\nmentioned  in  Rule  17.   The\tprecaution  of\tsending\t the
\nmemorandum  and impression of seal is provided for  in\tRule\n<\/p>\n
18.  Rules 19, 20 and 21 deal with preservatives to be added
\nto  certain types, of samples.\tThe important Rule  22\twith
\nwhich we are mainly concerned in these appeals specifies the
\nquantity  of  sample to be sent to the\tPublic\tAnalyst\t and
\nsays-“The  quantity  of\t sample of food to be  sent  to\t the
\nPublic\tAnalyst\t or  Director  for  analysis  shall  be\t  as
\nspecified below.”    Items 1 to 22 _gives a list of  various
\narticles  of food.  The residuary item is 23 which  includes
\nall foods not specified in items 1 to 22. In the last  column
\nof this list as against the quantity to be supplied,the
\nheading\t  is “Approximate quantity to be supplied.”
\nThe  first question which was mooted before us\twas  whether
\nRule  of the Rules is directory or mandatory.  Attention  of
\nthe Bench deciding Pamanani’s case (supra) was not called to
\nthis aspect of the
\n826<\/span>
\nmatter.\t  It seems to have been assumed, however,  that\t the
\nRule is mandatory.  Rules of interpretation for\t determining
\nwhether a particular provision is directory or mandatory are
\nwell-known.  Even in regard to Rule 22, many High Courts  of
\nIndia  had  taken the view that the Rule  was  directory  or
\nrecommendatory as the use of the word approximate’ in one of
\nthe columns of the Rule indicates.  The object of the  Rule,
\naccording  to the said decisions, was to secure evidence  as
\nto whether the article of food sold was adulterated or\tnot.
\nIf  the\t quantity sent by the Food Inspector to\t the  Public
\nAnalyst was sufficient for analysis and caused no  prejudice
\nto  the accused, then the mere fact of his sending a  lesser
\nquantity   than\t that  prescribed  could  not  vitiate\t the
\nevidentiary value of the report of the Public Analyst of the
\nconviction based thereupon; vide State of Bombay v. Ramanlal
\nJamnadas Gandhi(1); Nagar Swatha Adhikari, Nagar Mahapalika,
\nAgra  v. Ant Ram<\/a>(2) Public Prosecutor v.  Basheer  Sahib(3);
\nPublic\tProsecutor,  Andhra Pradesh v. Pasara  Rama  Rao<\/a>(4);
\nPublic Prosecutor v. Ediga Venkata Swami(5); Food Inspector,
\nQuilon\tv.  Koyakutty(6) and Food Inspector, Calicut  v.  T.
\nKarunakaran  &\tothers. (7 ) No decision of any\t High  Court
\ntaking\ta contrary view was brought to our notice.   In\t the
\nBombay\tdecision mentioned above, it was also observed,\t and
\nrightly,  that,\t whether  the  Rule  is\t recommendatory\t  or
\nmandatory,  it\tshould be observed by  the  Food  Inspectors
\nconcerned.   We\t may add that the decisions  of\t the  Courts
\nholding\t that  the  Rule  is merely  directory\tand  if\t the
\nquantity  sent by the Food Inspector is sufficient  for\t the
\npurpose of analysis, the report of the Public Analyst should
\nnot be thrown out merely on the ground of the breach of\t the
\nRule,  are not meant to give a charter or a licence  to\t the
\nFood Inspectors for violating’ the Rule.  They must remember
\nthat  even  directory  Rules are meant to  be  observed\t and
\nsubstantially complied with.  A Food Inspector committing  a
\nbreach\tof the Rule may be departmentally answerable to\t the
\nhigher\t authorities.\tHe  should,  therefore,\t always\t  be
\ncautious in complying with the Rules as far as possible\t and
\nshould not send a lesser quantity of sample than  prescribed
\nto  the Public Analyst unless there be a  sufficient  reason
\nfor doing so.\n<\/p>\n
In the eleventh edition of the well-known  treatise,-Maxwell
\non  Interpretation of Statutes. are to be found at page\t 362
\nonwards certain guidelines laid down for determining whether
\na  particular  Statute or Statutory Rule  is  imperative  or
\ndirectory.  “Where, indeed, the whole aim and object of\t the
\nlegislature  would be plainly deflated if the command to  do
\nthe thing in a particular manner did not imply a prohibition
\nto do it in any other manner, no doubt can be entertained as
\nto the intention”; that is to say, such a requirement  would
\nbe imperative.’ At page 364 it is stated :-“The general rule
\nis,  that an absolute enactment must be obeyed or  fulfilled
\nexactly,  but it is sufficient if a directory  enactment  be
\nobeyed or fulfilled substantially.”\n<\/p>\n
(1)  I.L.R. [1960] Bombay, 404.\n<\/p>\n
(2)  A.I.R. 1966 Allahabad, 32.\n<\/p>\n
(3)  A.I.R. 1966 Madras 325.\n<\/p>\n
(4)  A.I.R. 1967 Andhra Pradesh 49.\n<\/p>\n
(5)  A.I.R. 1967 Andhra Pradesh, 131.\n<\/p>\n
(6)  1972 Kerala Law Times, 464.\n<\/p>\n
(7)  1973 Kerala Law Times, 595.\n<\/p>\n
827<\/span><\/p>\n
A  few principles may now be extracted with  advantage\tfrom
\nthe seventh edition of Craies on Statute Law
\n\t      Page 62:\n<\/p>\n
\t      When  a statute is passed for the\t purpose  of
\n\t      enabling something to be done, and  prescribed
\n\t      the  formalities\twhich  are  to\tattend\t its
\n\t      performance,   those  prescribed\t formalities
\n\t      which  are  essential to the validity  of\t the
\n\t      thing  when  done\t are  called  imperative  or
\n\t      absoute;\tbut those which are  not  essential,
\n\t      and  may be disregarded  without\tinvalidating
\n\t      the thing to be done, are called directory”.
\n\t      Page 262
\n\t      “It is the duty of courts of justice to try to
\n\t      get at the real intention of the,\t legislature
\n\t      by  carefully attending to the whole scope  of
\n\t      the  statute to be construed. . . . . that  in
\n\t      each case you must look to the subject-matter,
\n\t      consider\tthe importance of the provision\t and
\n\t      the relation of that provision to the  general
\n\t      object intended to be secured by the Act,\t and
\n\t      upon  a  review  of the case  in\tthat  aspect
\n\t      decide whether the enactment is what is called
\n\t      imperative or only directory.”\n<\/p>\n
It  is not necessary to refer to the numerous decided  cases
\non this point.\tApplying the statutory principles  extracted
\nabove, it would be noticed that the use of the word ‘shall ‘
\nin  sub-section (3) of section 11 and in Rule 22  would,  on
\nits  face,  indicate that an imperative duty has  been\tcast
\nupon the Food Inspector to send a sample in accordance\twith
\nthe  prescribed Rules.\tBut it is well-known that  the\tmere
\nuse  of\t the word ‘shall’ does not invariably lead  to\tthis
\nresult.\t The whole purpose and the context of the  provision
\nhas  to be kept in view for deciding the issue.\t The  object
\nof  the Act is to obtain the conviction of a person  dealing
\nin  adulterated\t food.\t It was brought\t to  our  notice  by
\ncounsel\t on  either  side that\tthe  quantities\t of  various
\nsamples\t of food to be sent to the Public Analyst  as  fixed
\nfrom time to time have varied.\tAs observed by this Court in
\nthe  case of State of Uttar Pradesh v. Kartar  Singh<\/a>(1)\t the
\nstandards  of  food are fixed after  consultation  with\t the
\nCommittee constituted under section 3 of the Act.  The quan-
\ntities\tof samples are also fixed from time to. time by\t the
\nGovernment presumably in consultation with the Committee and
\non  the\t basis of the Experts’ opinions.  By and  large,  it
\nappears,,  as was stated before us by the. learned  Attorney
\ngeneral\t with  reference  to  the  various  tests  and\t the
\nquantities  required therefor from the Manual of Methods  of
\nTests  and Analysis for food, that generally the  quantities
\nfixed  are  more  than\tdouble\tthe  quantity  required\t for
\nanalysis by the Public Analyst.\t As, for example, the  total
\nquantity   required  for  the  various\ttests  of  Ghee\t  is
\napproximately  55 gms.\tBut the quantity prescribed in\tRule
\n22 is 150 gms.\tThe purpose of prescribing more than  double
\nthe quantity required for analysis. is that a Food Inspector
\nwhile  taking  a sample of food for analysis  in  accordance
\nwith  section 11 is not aware at the threshold\twhether\t the
\nperson from whom the sample has been taken would decline  to
\naccept one of the three parts.\tIt is to
\n(1) [1964]6 S.C.R. 679.\n<\/p>\n
828<\/span><\/p>\n
guard\tagainst\t such  an  eventuality\tthat  the   quantity
\nprescribed  is\tmore  than  double  because  if\t the  person
\ndeclines  to  accept  one  part\t of  the  sample,  then,  as
\nmentioned in sub-section (2), the Food Inspector has to send
\nan  intimation\tto the Public Analyst of  such\trefusal\t and
\nthereupon  the letter has to divide the 1\/3rd part  sent  to
\nhim into two: parts.  The half of the one third is  retained
\nfor  further tests, if necessary, or for production in\tcase
\nlegal proceedings are taken.  It would thus be seen that the
\nwhole object of section 11 and Rule 22 is to find out by  ,a
\ncorrect anaysis, subject to further. verifications and tests
\nby  the Director of the Central Laboratory or otherwise,  as
\nto whether the sample of food is adulterated or not.  If the
\nquantity sent to the Public Analyst, even though it is\tless
\nthan  that prescribed, is sufficient and enables the  Public
\nAnalyst to make a correct analysis, then merely because\t the
\nquantity  sent\twas not in strict compliance with  the\tRule
\nwill  not  result  in the nullification of  the\t report\t and
\nobliterate  its evidentiary value.  If the quantity sent  is
\nless,  it  is for the Public Analyst to see  whether  it  is
\nsufficient  for\t his  analysis\tor  not.  if  he  finds\t  it
\ninsufficient,  there is an end of the matter.  If,  however,
\nhe finds it sufficient, but due to one reason or the  other,
\neither\tbecause of further tests or otherwise,, it is  shown
\nthat  the report of the Public Analyst based upon the  short
\nquantity sent to him is not trustworthy or beyond doubt, the
\ncase may fail.\tIn other words, if the object is  frustrated
\nby  the sending of the short quantity by the Food  Inspector
\nto the Public Analyst, it is obvious, that the case may\t end
\nin  acquittal.\tBut if the object is not frustrated and\t is,
\nsquarely  and  justifiably achieved without  any  shadow  of
\ndoubt,\tthen  it  will\tendanger  public  health  to  acquit
\noffenders on technical grounds which have no substance.\t  To
\nquote  the  words  of  Sir George Rankin,  C.  J.  from\t the
\ndecision  of the Calcutta High Court in Chandra Nath  Bagchi
\nv. Nabadwip Chandra Dutt and others(1) at page 478, it would
\nbe  merely  piling  unreason  upon  technicality.”   In\t our
\nconsidered judgment the Rule is directory and not mandatory.
\nBut  we\t must hasten to reiterate what we  have\t said  above
\nthat, even so, Food Inspectors should take care to see\tthat
\nthey comply with the Rule as far as possible.
\nWe may also advert to one more aspect of the wording of\t the
\nRule  to find out whether it is directory or  mandatory\t and
\nthat  is  the use of the word ‘approximate’  in\t the  second
\ncolumn of the list.  The use of this term does indicate\t the
\ndirectory  nature  ‘of\tthe Rule but  does  not\t necessarily
\nmilitate  against the view that the Rule is mandatory.\t The
\nexpression  ‘approximate quantity’ is meant to\tconvey\tthat
\nthe quantity to be supplied must be in the close vicinity of
\nthe  quantity  specified  So  long it is  so,  there  is  no
\ninfraction  of\tthe Rule at all.  But the question  of\tnon-
\ncompliance with the Rule comes in when the quantity supplied
\nis  not\t in  close vicinity of the  quantity  specified\t and
\nappreciably below it.  Even so, if the quantity supplied  is
\nsufficient and enables the Public Analyst to do his duty  of
\nmaking\ta correct analysis,, it should be inferred that\t the
\nRule has been substantially complied with, as the purpose of
\nthe Rule has been achieved.\n<\/p>\n
(1)A.I.R. 1931 Calcutta 476.\n<\/p>\n
829<\/span><\/p>\n
In  Pamanani’s\tcase (supra) the Court seems to\t have,\tbeen
\nOver  whelmed by a sense of injustice when the\tHigh  Court,
\nwhich\thad  acquitted\tthe  manufacturer,   convicted\t the
\nappellant, a grocer although facts of the case did  indicate
\nthat  the real culprit was the\tmanufacturer.\tTechnically,
\nthe  grocer  could not succeed in getting  protection  under
\nsection 19 (2) (a) of the Act.\tIt is in this background, we
\nare  inclined.\tto think that the Court’s sense\t of  justice
\nweighed\t heavily in favour of the grocer and prompted it  to
\nsay  “that non-compliance with the quantity to\tbe  supplied
\ncaused\t‘not  only  infraction of the  provisions  but\talso
\ninjustices”.   How  did it cause injustice?   There  is\t not
\nelaboration in the judgment.  There is no indication of\t the
\nbasis for saying-“The quantities mentioned are required\t for
\ncorrect\t analysis.” A lesser quantity also could enable\t the
\nAnalyst\t to  make a correct analysis.  That  being  so,\t the
\ninference,   from  the\ttwo  premises  stated  above,\tthat
\n“Shortage in quantity for  analysis is not permitted by\t the
\nstatute”,  if  we may say so, with great respect, is  not  a
\ncorrect statement of the law.  We may, in passing, note that
\nthe Rules have now been amended and Rule 22B has been  added
\nin 1977 which reads as follows
\n\t      “22B Quantity of sample sent to be  considered
\n\t      as sufficient
\n\t      Notwithstanding anything contained in Rule 22,
\n\t      the quantity of sample sent for analysis shall
\n\t      be considered as sufficient unless the  public
\n\t      analyst\tor  the\t Director  reports  to\t the
\n\t      contrary.”\n<\/p>\n
In our opinion, the new Rule has been added for the  purpose
\nof  clarifying the law- and not by way of amending it.\t The
\nlaw, as we have enunciated it, was so even without Rule\t 22B
\nand  it\t is stated here, to place it beyond  any  debate  or
\ndoubt.\n<\/p>\n
We  may\t usefully refer to a recent decision dated  July  6,
\n1976 of the Supreme Court of the United States of America in
\nthe  cases  of W. T. Stone, Warden, Petitioner,\t 74-1055  v.
\nLloyad\tCharles\t Powell and Charles L. Wolff,  Jr.,  Warden,
\nPetitioner, 72-1222 v. David L. Rice wherein the majority of
\nthe  Court  made a conspicuous departure from  its  previous
\ndecision  of about half a century in the application of\t the
\nexclusionary Rule of evidence.\tThe prosecution relied\tupon
\nevidence  obtained by searches and seizures Which were\tsaid
\nto  be\tunconstitutional  and unlawful.\t The  issue  was  of
\nconsiderable  importance in the administration\tof  criminal
\njustice.   Mr.\tJustice\t Powell\t in  his  leading   majority
\njudgment dissenting from the earlier view said
\n\t      “Upon  examination, we conclude, in  light  of
\n\t\t\t    the nature and purpose of the Fourth  Amendmen
\nt
\n\t      exclusionary   rule,   that   this   view\t  is
\n\t      unjustified.   We hold, therefore, that  where
\n\t      the State has provided an opportunity for full
\n\t      and  fair\t litigation of\ta  Fourth  Amendment
\n\t      claim, the Constitution does not require\tthat
\n\t      a\t State\tprisoner be granted  federal  habeas
\n\t      corpus  relief  on the  ground  that  evidence
\n\t      obtained\tin  an\tunconstitutional  search  or
\n\t      seizure was introduced at his trial.”\n<\/p>\n
830<\/span><\/p>\n
A  very wholesome principle was adverted to by\tthe  learned
\nJudge when he said :\n<\/p>\n
\t      “Application  of\tthe rule thus  deflects\t the
\n\t      truth  finding  process and  often  frees\t the
\n\t      guilty.\tThe  disparity in  partiCular  cases
\n\t      between  the  error committed  by\t the  police
\n\t      officer  and  the windfall afforded  a  guilty
\n\t      defendant\t by  application  of  the  rule\t  is
\n\t      contrary\tto the idea of proportionality\tthat
\n\t      is essential to the concept of justice.  Thus,
\n\t      although the rule is thought to deter unlawful
\n\t      police activity in part through the  nurturing
\n\t      of  respect  for Fourth Amendment\t values,  if
\n\t      applied indiscriminately it may well have\t the
\n\t      opposite\teffect of generating disrespect\t for
\n\t      the law and administration of justice.”
\n\t      Chief Justice Burger in his concurring opinion
\n\t      said
\n\t      “To vindicate the continued existence of\tthis
\n\t      judge-made  rule, it is incumbent\t upon  those
\n\t      who   seek   its\tretention-and\tsurely\t its
\n\t      extension-to  demonstrate that it\t serves\t its
\n\t      declared\tdeterrent purpose and to  show\tthat
\n\t      the results outweigh the rule’s heavy costs to
\n\t      rational enforcement of the criminal law. See,
\n\t      e.g. Killough v. United States, 315 F. 2d\t 241
\n\t      (1962).The  burden rightly rests\tupon  those,
\n\t      who ask society to ignore trustworthy evidence
\n\t      of guilt, at the expense of setting  obviously
\n\t      guilty criminals free to ply their trade.”\n<\/p><\/blockquote>\n
We may now briefly deal with some of the submissions made on
\nbehalf of the respondents in support of the decision of this
\nCourt in  Pamanani’s case. It was argued with reference\t to-
\nMothods\t in  food  Analysis, second edition  by\t Maynard  A.
\nJoslyn, that the sample must be a representative sample.  It
\nis  with that view that the quantity was prescribed in\tRule
\n22  and should not be permitted to be tampered with  in\t any
\nmanner.\t We  are not impressed by this argument\t at  all.  A
\nrepresentative\tsample\thas  got  a  different\tconnotation,
\nmeaning and    purpose\tin commercial transactions.  If\t for
\ninstance,  an  average\tprice  is to be\t fixed\tfor  a\thuge
\nquantity of, say, wheat lying in bulk in different storages,
\nthen  samples  must be taken from all the storages  to\tmake
\nthem a representative sample of the entire quantity for\t the
\nfixation  of  the  average price.  Taking  sample  from\t one
\nstorage\t  will\tnot  be\t sufficient.  In  our  statute\t the
\ningredient  of\tthe  offence is, as  mentioned\tin  the\t 7th
\nsection of the Act, manufacturing for sale, storing, selling
\nor   distributing any adulterated food. If the food sold  to
\nthe Inspector is    proved   to\t be  adulterated,   it\t is.
\nimmaterial  whether  the  sample  purchased  by\t him  is   a
\nrepresentative\tsample\tor  not\t of  the  entire  stock\t  in
\npossession of the person. A person who. stores or sells such
\nsample is liable to be punished under section 16 (1) (a) (i)
\nof the Act.\n<\/p>\n
Reliance  was placed upon the case of Dwerryhouse v.  United
\nCo-operative   Dairies,\t  Ltd.\t (1)   The   question\t for
\nconsideration  in  that\t case was the  scope  and  ambit  of
\ncertain\t sections  of  the Food and  Drugs  Act,  1955.\t The
\nJustice had come to. the conclusion on the facts of the
\n(1) [1962] 1 All England Law Reports, 936.\n<\/p>\n
831<\/span><\/p>\n
case  that  no sample under the Act had\t been  procured\t and
\ndecided that section 108 did not prevent their hearing\tthe,
\ncase and that the supplier was entitled. to the defence laid
\ndown  by  section  94(4) of the Act.  On a  case  stated  by
\nJustices  for the county of Chester, Lord Parker, C.J.\tsaid
\nat page 941
\n\t      “I think that they were wrong in holding\tthat
\n\t      the  respondent was entitled to the  statutory
\n\t      defence  laid  down in s. 94(4)  of  the\tAct.\n<\/p>\n
\t      That  defence  is only open in  respect  of  a
\n\t      sample of milk taken.  I cannot think that one
\n\t      can  give a sample of milk any  other  meaning
\n\t      than a sample of milk procured under the\tAct,
\n\t      which  are the words used in section  108\t (1)\n<\/p>\n
\t      (a) (i).\tIndeed, sub-s. (4) of s. 94  appears
\n\t      in  a  section which is  dealing\tparticularly
\n\t      with  the\t sampling of  milk,  and  subsequent
\n\t      proceedings,   and  I  am\t  quite\t  satisfied,
\n\t      therefore, that if, as I think, no sample\t was
\n\t      procured\tunder the Act, sub-s. (4)  does\t not
\n\t      come into operation.”\n<\/p>\n
On a consideration of the various relevant provisions of the
\nEnglish\t Statute for the application of section 1108(1)\t and
\nsection 94(4) it was found necessary that the sample  should
\nhave been procured under the said Act.\tSince it was not so,
\nboth  the said provisions were held to be inapplicable.\t  In
\nthe context of our Statute the decision is of no help to the
\nrespnodents.\n<\/p>\n
Reliance  was  also  placed  upon  the\tcase  of  Skeate  v.
\nMoore(1).   In\tthat case the report of the  Public  Analyst
\nshowed\t that  the  aggregate  of  meat\t in  the  two\tpies
\nrepresented  a smaller percentage of meat than was  required
\nto  be\tcontained  in one meat pie under the  Meat  Pie\t and
\nSausage Roll Regulations, 1967.\t He did not find  separately
\nthe meat content of each of the two pies sent to him.  Under
\nRegulation 5, a meat content of each pie was necessary to be
\nfound  out.   The  proceeding had to be “in  respect  of  an
\narticle of substance sampled.” They were found to relate  to
\npart  only  of the sample taken.  And in that  view  of\t the
\nmatter\tthe  conviction was quashed.  In  our  opinion,\t the
\nLanguage  of  the  1955\t Act  and  the\tRegulations   framed
\nthereunder  being  quite dissimilar to our Statute  and\t the
\nRules,\tthe  decision  aforesaid  cannot  be  assessed\tinto
\nservice in favour of respondents.\n<\/p>\n
On  a careful consideration of the matter, we have  come  to
\nthe conclusion, and we say so with very great respect,\tthat
\nPamanani’s  case  on the point at issue before\tus  was\t not
\ncorrectly  decided.   And this would have  necessitated\t our
\npassing of various consequential orders in these cases.
\nIn  some  cases\t High Court refused  special  leave  against
\norders of acquittal; in others some other grounds of  attack
\non  the order of conviction were available but were  neither
\ngone into nor decided by the High Court; in some others\t the
\nHigh   Court  following\t the  decision\tof  this  Court\t  in
\nPamanani’s case recorded orders of acquittal.  We also
\n(1) [1971] 3 All England Law Reports, 1306.\n<\/p>\n
832<\/span><\/p>\n
found  that, in some cases, the adulteration was of a  minor
\nand technical character, although in some it was of, rather,
\nserious nature too.  In some cases, decisions were given  on
\nthe footing that chillies powder is condiment and not spice-
\na matter which we are not deciding.  But taking the totality
\nof  the facts and circumstances of each case  and  specially
\nthe  fact that Pamanani’s case has held the field for  about
\nthree  years, by now, we did not feel that justice  required
\nthat we should interfere with the orders of acquittal in all
\nthese cases and send some cases back to the High Court while
\ndeciding others ourselves by recording orders of conviction.
\nRule 22B clarifying the law has also been introduced as late
\nas  December, 1977 although Pamanani’s case was\t decided  in
\nDecember, 1974.\t We were informed at the Bar, and so far  we
\nare  aware, rightly ‘too, that for non-compliance  with\t the
\nrequirements of Rule 22, many cases in different States\t had
\nended  in acquittal.  Decision in many of them became  final
\nand only a few could be brought to this Court.\tEach one  of
\nthe Food Inspectors concerned had jailed in discharging\t his
\nduty  strictly in accordance with the requirements,  of\t the
\nlaw, and, in such a situation, after great harassment,\tlong
\ndelay, and expenses which the respondents bad to incur, they
\nshould not be punished by this Court.\n<\/p>\n
In the three Kerala cases Mr. S. V. Gupte appearing with Mr.
\nK.  R. Nambiar and Mr. Sudhakaran stated before us that\t the
\nState was interested more in the correct enunciation of\t the
\nlaw than in seeing that the respondents in these appeals are
\nconvicted.  They were not anxious to prosecute these matters
\nto  obtain ultimate conviction of the respondents.  A  large
\nnumber of the other appeals are by the Municipal Corporation
\nof Delhi for whom the Attorney General appeared assisted  by
\nMr. B. P. Maheshwari.  Although a categorical stand was\t not
\ntaken  on behalf of the appellants in these appeals  as\t the
\none  taken  in\tthe Kerala cases,  eventually,\tthe  learned
\nAttorney  General  did net seriously object  to\t the  course
\nindicated  by  us.  In the few Bombay appeals  M\/s.   V.  S.
\nDesai  and M. N. Shroff showed their anxiety  for  obtaining
\nultimate  convictions of the offenders, but we do  not\tfind
\nsufficient  reason ‘or passing a different kind of order  in
\nthe  Bombay appeals.  In similar situations in the  case  of
\nThe  State of Bihar v. Hiralal Kejriwal and Another<\/a>(“)\tthis
\nCourt  refused\tto exercise its\t discretionary\tjurisdiction
\nunder Article 136 of the Constitution and did not order\t the
\ncontinuance of the criminal proceeding any further.  In Food
\nInspector,  Calicut  Cororation v. Cherukattil\tGopalan\t and<\/a>
\nanr.(2) this Court said at page
\n730  : —\n<\/p>\n
\t      “But  in view of the fact that  the  appellant
\n\t      has argued the appeal only as a test case\t and
\n\t      does   not  challenge  the  aquittal  of\t the
\n\t      respondents, we merely set aside the order and
\n\t      judgment\tof the High Court.  But we may\tmake
\n\t      it clear that apart
\n(1)  [1960] 1 S.C.R. 726.\n<\/p><\/blockquote>\n
(2)  [1971] Suppl.  S.C.R. 721.\n<\/p>\n
833<\/span><\/p>\n
\t      from   holding  the  respondents\t technically
\n\t      guilty, we are not setting aside the order  of
\n\t      acquittal passed in their favour.”\n<\/p>\n
For the reasons stated above, we dispose of these appeals by
\nmerely laying down the correct proposition of law but do not
\nmake  any con sequential orders setting aside the  acquittal
\nof  any of the respondents or sending back the cases to\t the
\nCourts\tbelow or convicting any of them by an order of\tthis
\nCourt.\n<\/p>\n
Appeals allowed.\n<\/p>\n
834<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Kerala Etc. Etc vs Alaserry Mohammed Etc. Etc on 10 February, 1978 Equivalent citations: 1978 AIR 933, 1978 SCR (2) 514 Author: N Untwalia Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V., Untwalia, N.L., Kailasam, P.S., Tulzapurkar, V.D. PETITIONER: STATE OF KERALA ETC. ETC. Vs. RESPONDENT: ALASERRY MOHAMMED ETC. ETC. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-134691","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Kerala Etc. Etc vs Alaserry Mohammed Etc. 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